Exhibit 10.21
AMENDMENT NO. 2 AND WAIVER dated as of December 7, 2000 to
the Credit Agreement dated as of October 12, 1999 (as amended by
Amendment No. 1 to the Credit Agreement dated as of September 27,
2000, the "Credit Agreement") among Consolidated Freightways
Corporation of Delaware, a Delaware corporation (the "Borrower"),
ABN AMRO Bank N.V. as administrative agent (the "Administrative
Agent"), and the Lender Parties party to the Credit Agreement.
Capitalized terms not otherwise defined in this Amendment No. 2 and
Waiver have the same meanings as specified therefor in the Credit
Agreement.
Preliminary Statements
(1) Parent proposes to create a captive insurance company
chartered outside of the United States (the "Captive Insurance
Subsidiary") which would provide various types of insurance coverage
to the Borrower and its Affiliates.
(2) As part of the capitalization and operation of the
Captive Insurance Corporation, it is anticipated that the Captive
Insurance Subsidiary, may invest excess cash reserves in short-term
promissory notes of the Borrower or may purchase accounts receivable
originated by the Borrower and its Affiliates.
(3) The creation, capitalization and operation of the
Captive Insurance Subsidiary may constitute a breach of certain
covenants contained in the Credit Agreement.
(4) The Borrower has requested that the Lender Parties
agree to (1) amend the definition of "Permitted Liens" and Section
5.02(a) of the Credit Agreement as provided herein and (2) waive the
requirements of certain covenants in the Credit Agreement as
provided herein.
(5) The Lender Parties have indicated their willingness
to agree to the amendment and the waiver described above on the
terms and subject to the satisfaction of the conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants and agreements contained herein the parties
hereto hereby agree as follows:
SECTION 1. Amendment of the Credit Agreement. (a) The
definition of "Permitted Liens" in the Credit Agreement is amended
by deleting the period at the end of paragraph (h) therein and
substituting therefor the word "; and" and adding a paragraph (i)
thereto after paragraph (h) therein to read as follows:
"(i) Liens on real property of a Loan Party to secure
notes in an aggregate principal amount not in excess of $10,000,000
at any time issued by the Borrower to a captive insurance company
formed by the Parent."
(b) Section 5.02(a)(v) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(v) sales or other transfers of assets (other than sales
of accounts receivable and any related property) by the Borrower in
any Fiscal Year provided that the aggregate book value of all such
assets sold or transferred in such Fiscal Year is not in excess of
five percent (5%) of the Consolidated Total Assets of the Parent as
of the end of the previous Fiscal Year, and"
(c) Section 5.02(a) of the Credit Agreement is amended by
adding a subsection (vi) thereto after subsection (v) therein to
read as follows:
"(vi) sales of accounts receivable and any related
property to a captive insurance company formed by the Parent
provided that the aggregate net unrecovered investment of the
captive insurance company in such accounts receivable and proceeds
thereof shall not exceed at any time $20,000,000."
SECTION 2. Waiver of Certain Provisions of the Credit
Agreement. Compliance by the Borrower with the provisions of
Sections 5.01(b), 5.02(d) and 5.02(i) is hereby waived effective as
of November 28, 2000 to the extent that the creation, capitalization
and operation (including investments in assets owned by the Borrower
and its Affiliates) of the Captive Insurance Subsidiary would
constitute a breach of such sections.
SECTION 3. Conditions Precedent to the Effectiveness of
this Amendment No. 2 and Waiver. This Amendment No. 2 and Waiver
shall become effective when and if the following conditions
precedent have been satisfied by December 31, 2000:
(a) The Administrative Agent shall have received
counterparts of this Amendment No. 2 and Waiver executed by the
Borrower and the Required Lenders and the Consent annexed hereto
executed by the Guarantor; and
(b) The Borrower shall have paid all accrued fees of the
Administrative Agent and the Lender Parties and the accrued fees and
expenses of counsel to the Administrative Agent.
SECTION 4. Reference to and Effect on the Credit
Agreement. (a) On and after the effective date of this Amendment
No. 2 and Waiver, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof" or words of like import referring
to the Credit Agreement and each reference in each of the other Loan
Documents to "the Credit Agreement," "thereunder," "thereof" or
words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement, as amended and otherwise
modified by this Amendment No. 2 and Waiver.
(b) The Credit Agreement, as amended by the amendment
specifically provided above in Section 1, is and shall continue to
be in full force and effect and is hereby in all respects ratified
and confirmed. The execution, delivery and effectiveness of this
Amendment No. 2 and Waiver shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of any
beneficiary of the Credit Agreement or constitute a waiver of any
provision thereof.
SECTION 5. Costs and Expenses. The Borrower hereby
agrees to pay, upon demand, all of the reasonable costs and expenses
of the Administrative Agent incurred in connection with the
preparation, execution, delivery, administration, modification and
amendment of this Amendment No. 2 and Waiver and all of the
agreements, instruments and other documents delivered or to be
delivered in connection herewith.
SECTION 6. Execution in Counterparts. This Amendment No.
2 and Waiver may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this
Amendment No. 2 and Waiver by telecopier shall be effective as
delivery of a manually executed counterpart of this Amendment No. 2
and Waiver.
SECTION 7. Governing Law. This Amendment No. 2 and
Waiver shall be governed by, and construed in accordance with, the
laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 and Waiver to be executed by their respective
officers thereunto duly authorized, as of the date first above
written.
THE BORROWER
CONSOLIDATED FREIGHTWAYS CORPORATION
OF DELAWARE
By/s/Kerry K. Morgan
Name:Kerry K. Morgan
Title:Vice President and Treasurer
THE ADMINISTRATIVE AGENT
ABN AMRO BANK N.V.
By/s/David J. Thomas
Name:David J. Thomas
Title:Group Vice President
By/s/Jonathan F. Chiarieri
Name:Jonathan F. Chiarieri
Title:Officer
THE LENDER PARTIES
ABN AMRO BANK N.V.,
as the Issuing Bank and as a Tranche A Lender
By/s/David J. Thomas
Name:David J. Thomas
Title:Group Vice President
By/s/Jonathan F. Chiarieri
Name:Jonathan F. Chiarieri
Title:Officer
ABN AMRO BANK N.V.,
as a Tranche B Lender
By/s/David J. Thomas
Name:David J. Thomas
Title:Group Vice President
By/s/Jonathan F. Chiarieri
Name:Jonathan F. Chiarieri
Title:Officer
BANK ONE, NA (Main Office Chicago),
as a Tranche A Lender
By/s/Joanne W. Anderson
Name:Joanne W. Anderson
Title:Corporate Banking Officer
BANK ONE, NA (Main Office Chicago),
as a Tranche B Lender
By/s/Joanne W. Anderson
Name:Joanne W. Anderson
Title:Corporate Banking Officer
UNION BANK OF CALIFORNIA, N.A.,
as a Tranche B Lender
By/s/Cheryl B. Cinelli
Name:Cheryl B. Cinelli
Title: Vice President
CREDIT AGRICOLE INDOSUEZ,
as a Tranche B Lender
By/s/Richard A. Drennan
Name:Richard A. Drennan
Title:Vice President
CREDIT AGRICOLE INDOSUEZ
as a Tranche B Lender
By/s/Paul A. Dytrych
Name:Paul A. Dytrych
Title:Senior Relationship Manager
FIRST UNION NATIONAL BANK,
as a Tranche B Lender
By/s/Roy O. Young
Name:Roy O. Young
Title:Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Tranche B Lender
By/s/Aaron J. Gordon
Name:Aaron J. Gordon
Title:Vice President
FLEET NATIONAL BANK
as a Tranche A Lender
By_________________________________
Name:
Title:
FLEET NATIONAL BANK
as a Tranche B Lender
By_________________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
as a Tranche A Lender
By/s/Cheryl L. Ebner
Name:Cheryl L. Ebner
Title:Senior Vice President
KEYBANK NATIONAL ASSOCIATION,
as a Tranche B Lender
By/s/Cheryl L. Ebner
Name:Cheryl L. Ebner
PNC BANK, NATIONAL ASSOCIATION,
as a Tranche A Lender
By/s/David J. Wheaton
Name:David J. Wheaton
Title:Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Tranche B Lender
By/s/David J. Wheaton
Name:David J. Wheaton
Title:Vice President
CONSENT
Dated as of December 7, 2000
The undersigned, as an Affiliate (as defined in the Credit
Agreement dated as of October 12, 1999 among Consolidated
Freightways Corporation of Delaware, the financial institutions
party thereto and ABN AMRO Bank N.V. as administrative agent and as
amended by Amendment No. 1 and Waiver thereto dated as of September
27, 2000) of Consolidated Freightways Corporation of Delaware, a
Delaware corporation (the "Borrower"), has executed an Affiliate
Guaranty dated as of October 12, 1999, as heretofore amended or
otherwise modified (as so amended, the "Guaranty"), pursuant to
which the undersigned guarantees all obligations of the Borrower
under the Credit Agreement and the other Loan Documents (as defined
in the Credit Agreement).
The undersigned, in its capacity as Guarantor under the
Guaranty, hereby consents to the foregoing Amendment No. 2 and
Waiver and hereby confirms and agrees that notwithstanding the
effectiveness of such Amendment No. 2 and Waiver, the Guaranty is,
and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects.
Delivery of an executed counterpart of a signature page to
this Consent by telecopier shall be effective as delivery of a
manually executed counterpart of this Consent.
This Consent shall be governed by, and construed in
accordance with, the laws of the State of California.
IN WITNESS WHEREOF, the undersigned has caused this
Consent to be executed by its officers thereunto duly authorized as
of the date first above written.
CONSOLIDATED FREIGHTWAYS CORPORATION
By:/s/Kerry K. Morgan
Name:Kerry K. Morgan
Title:Vice President and Treasurer